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1976

An Interim Assessment of the 1972 Federal Water Pollution Control Act Amendments Denis J. Brion

Repository Citation Brion, Denis J., "An Interim Assessment of the 1972 Federal Water Pollution Control Act Amendments" (1976). Faculty Publications. Paper 997. http://scholarship.law.wm.edu/facpubs/997

Copyright c 1976 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. http://scholarship.law.wm.edu/facpubs

AN INTERIM ASSESSMENT OF THE 1972 FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS Denis J. Brion

It is becoming a part of the conventional wisdom that the national legislative process has undergone substantial degeneration-under the typical pattern, Congress creates, with considerable fanfare, an ambitious federal program in order to cure one or another of the social ills which plague our times. Next comes a ritual bill-signing ceremony during which the President intones that this particular program is the most significant of our generation. There then follows a period during which, again with the attention of the news media, prominent individuals are appointed to the top positions in the new bureaucracy. This phase is inevitably followed by the setting in of a long period of bureaucratic routine, under which the program continues because of its momentum, with expanding funding but with no real impact on the problem for which the program was created. To the average citizen, the whole process seems to be one of cumulation-new programs are constantly being created, old programs continue, no program seems to solve anything, and the burden of government seems ever to increase. It has reached the point that the traditional conservative battle cry against big government is now being echoed in the opposing camps. Edmund Muskie, for instance, is now wondering whether the largeness of government is hampering the ability of government to do its job. And Edmund Brown, Jr., is past the stage of wondering; he is actively advocating a reduction in the size of government. The purpose of this article is not to examine the nature of this trend, nor is it to comment on the efficiency of the political process. Rather it is to assess, however briefly within the context of this new conventional wisdom, the nature of one ambitious federal program, its impact nationwide as well as in Virginia, and some of its prospects.

A. A Brief Description of the 1972 Amendments In October, 1972, Congress enacted the Federal Water Pollution Control Act Amendments,. a comprehensive rewriting and expansion of an existing federal pollution abatement statue. These amendments, commonly referred to by their Public Law number, Pl 92-500, set ultimate goels for achieving the cleanup'of America's watercourses. By July 1, 1977, industrial discharges must be treated by treatment works using "the best practicable control technology currently available," and municipal sewage treatment works must be capable of "secondary treatment." By July 1, 1983, industrial waste treatment works must be capable of "the best available technology economically achievable," and municipal sewage treatment works must achieve "the best practicable waste treatment technology." What all this euphonious language is intended to mean is that, by July 1, 1983, "an interim goel of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water" is to be achieved; and, by 1985, "the national goel that the discharge of pollutants into the navigable waters be eliminated" is to be achieved. In brief, these goels represent a truly ambitious commitment to reversing the generations-long process of the degradation of the waterways of America-an enterprise worthy in comparison to the most grandiose government programs that have been initiated in the two centuries of our republic. The mechanisms of Pl 92-500 are as complex as the intent is massive. The heart of the enactment is the National Pollutant Discharge Elimination System (NPDES), which sets up a regulatory mechanism based on the concept of federal-state cooperation. Under NPDES, all persons who potentially might discharge pollutants must obtain a discharge permit; "persons" includes both private entities, such as industries, and

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public entities, such as municipalities. The NPDES permits are issued under direct regulatory programs established and carried out by the individual states. However, these individual programs are approved in advance by the federal Environmental Protection Agency (EPA), and the substantive content of the programs is controlled by regulations promulgated by EPA. The authority of EPA to issue these various regulations and guidelines creates for that agency a role of setting standards, in which it establishes tolerable levels of various kinds of pollutants, treatment standards, levels of quality for. receiving waters, and procedural requirements. And, because EPA must approve the individual state programs and is empowered to withdraw this approval, EPA also fills the role of overseer. Other hardly less important provisions of Pl 92-500 provide for a comprehensive scheme of state planning carried out under federal guidelines and assisted by federal grant funds; for substantial research and development to be conducted by EPA in waste treatment technology; and for a broad enforcement scheme. The complex scheme of planning includes river basin plans, which are to describe present water quality conditions and to project future conditions and treatment requirements; management plans, which are to establish the means by which these treatment requirements are to be met; and a more sophisticated level of planning for the purpose of defining and establishing means to abate less obvious but no less important forms of pollution such as storm water r!Jnoff from urban areas, siltation from land areas disturbed by development, and runoff of nutrient-laden waters from heavily-fertilized agricultural lands. The enforcement scheme of Pl 92-500 is carried out primarily by the individual states, but the EPA has broad residual authority to step into any faltering state process; and a relatively generous citizen suit provision is also included. If the heart of Pl 92-500 is NPDES, the prime mover is the federal fund grantmg process under which EPA provides 75% of the costs of public sewage treatment works. Pl 92-500 authorized a total of $18 billion for

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such purposes, spread over fiscal years 1972, 1973, and 1974; and despite a delay because of a presidential impoundment of a large· portion of the funds (which impoundment was struck down by the courts), the money has been made available and will soon be substantially spent. These funds are parceled out in a complicated procedure under which the individual states are required to adopt a rating system for assessing priorities of potential fund recipients, followed by a three-stage process under which the various projects, once selected far funding, are moved from inception through the design phase to completion. Finally, Pl 92-500 established a "National Study Commission," charged with the duty to make a full and complete investigation and study of all of the technological aspects of achieving. and all aspacts of the total economic. social, and environmental effects of achieving or not achieving. the effluent limitations and goals set forth for 1983 in . . . this Act.

Thus, the National Study Commission was charged with the duty to make its report by September, 1975, in order to permit "mid-